Gilson v The Queen [1991] HCA 24

Gilson v The Queen [1991] HCA 24

Where an accused is charged in the alternative with stealing and receiving and the jury, upon the evidence (including proof of recent possession), is satisfied beyond reasonable doubt that the accused committed one or the other but cannot say which, the jury should be directed to convict the accused of the less serious offence. The direction to choose between the alternatives on the balance of probabilities is only permissible when both offences carry the same maximum penalty; otherwise, the jury must not convict of the more serious offence unless satisfied beyond reasonable doubt of guilt of that particular offence. No miscarriage of justice occurred in the present case as both offences...

Jurisdiction
Australia
Procedural Posture
Criminal Appeal / Application for Special Leave to Appeal and Appeal to High Court
Outcome
Special leave to appeal granted. Appeal dismissed.
Legal Topics
['alternatives of Theft and Receiving' 'doctrine of Recent Possession' 'standard of Proof in Criminal Trials' 'jury Directions' 'section 196 Criminal Law Consolidation Act 1935 (sa)']
['criminal Law'] ['alternatives of Theft and Receiving' 'doctrine of Recent Possession' 'standard of Proof in Criminal Trials' 'jury Directions' 'section 196 Criminal Law Consolidation Act 1935 (sa)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Application for Special Leave to Appeal and Appeal to High Court

Legal Issues

  1. 1 ['Whether a jury may convict an accused of one of two alternative offences (stealing or receiving) by determining on the balance of probabilities which offence was committed when satisfied beyond reasonable doubt that the accused committed one or the other.' 'Appropriate jury direction when prosecution relies on recent possession of stolen goods and the accused is charged with both theft and receiving in the alternative.']

Ratio Decidendi

Where an accused is charged in the alternative with stealing and receiving and the jury, upon the evidence (including proof of recent possession), is satisfied beyond reasonable doubt that the accused committed one or the other but cannot say which, the jury should be directed to convict the accused of the less serious offence. The direction to choose between the alternatives on the balance of probabilities is only permissible when both offences carry the same maximum penalty; otherwise, the jury must not convict of the more serious offence unless satisfied beyond reasonable doubt of guilt of that particular offence. No miscarriage of justice occurred in the present case as both offences...

Court Disposition

Special leave to appeal granted. Appeal dismissed.

Orders

  • ['Application for special leave to appeal granted.' 'Appeal dismissed.']